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HomeMy WebLinkAboutDedicated Improvements Agreement - Menards Inc - Intersection Improvements at Callander and St Joseph Street1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOIITH BEND. INDIANA 46601-1930 Theron Berg Menards, Inc. 5101 Menard Drive Eau Claire, WI 54703 U T11466 ? PEACE 1865 CITY OF t BEND PETE BUTTIGIEG, MAYI BOARD OF PUBLIC WORKS November 27, 2018 RE: Dedicated Improvements Agreement Dear Mr. Berg: PHONE 574/235-9251 FAx 574/235-9171 The Board of Public Works, at its meeting held on November 27, 2018, approved the above referenced agreement regarding improvements in the public right-of-way at the intersection of Callander St. and St. Joseph St. for Menards development. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure GARY A. GILOT SUZANNA M. FRITZBERG ELIZABETH A. MARADIK JAMEs A. MUELLER THERESE J. DORAU ST. JOSEPH / CALLANDER INTERSECTION IMPROVEMENT DEDICATED IMPROVEMENTS AGREEMENT This St. Joseph / Callander Intersection Dedicated Improvements Agreement (the "Agreement") is made on this the day of November, 2018 by and between the City of South Bend, Indiana, an Indiana municipal corporation (the "City"), acting by and through its Board of Public Works, and Menard, Inc., a Wisconsin corporation with an address of 5101 Menard Drive, Eau Claire, Wisconsin 54703 (the "Owner"), in order for the Owner to construct dedicated improvements in the public right-of-way (the "R.O.W.") at the intersection of Callander Street and St. Joseph Street (the "Intersection"). and WHEREAS, the City holds title to the Intersection and the R.O.W. at the Intersection; WHEREAS, Owner intends to reconstruct the Intersection, extending it approximately 140 ft to the west and 55 ft. to the north of the centerline, as shown more particularly on the project map, attached hereto and incorporated herein as Exhibit A; and WHEREAS, Owner also intends to construct new sidewalks, curbs, signage, lighting, roadways, and utilities in the R.O.W. ("Dedicated Improvements") as more particularly set forth on Exhibit B, which is attached hereto and incorporated herein by reference; and WHEREAS, Owner desires the occupancy and partial temporary closure of the R.O.W. in order to construct the Dedicated Improvements; and NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, the adequacy of which the parties expressly acknowledge, Owner and the City agree as follows: 1. Construction Inspection The Owner has provided the City with Exhibits A and B, which depict drawings of the reconstructed Intersection and the Dedicated Improvements, which the City acknowledges conforms to the City's standards. The Owner shall allow the City to inspect the Intersection and Dedicated Improvements during construction to ensure conformance to the agreed standards set forth in Exhibits A and B, in particular with regard to area planning, adequacy of design, and quality of construction. The Owner shall contact the City to arrange for the attendance of a City inspector at key milestones throughout work within the R.O.W. Key milestones shall include but not limited to: Storm Sewer installation, No. 53 stone placement, Hot Mixed Asphalt placement, and concrete curb or sidewalk placement. The Owner agrees to perform any necessary adjustments as reasonably required by the City as a result of such inspections. 2. Permits It shall be Owner's sole responsibility and expense to obtain all permits associated with the construction and installation of the reconstructed Intersection and the Dedicated Improvements in the R.O.W. 3. Performance Bond Owner agrees to provide the City with a performance bond for an amount equal to one hundred twenty—five percent (125%) of the construction cost covering all work performed pursuant to this Agreement. 4. Maintenance Bond Owner agrees to provide the City with a maintenance bond equal to ten percent (10%) of the construction cost covering all work performed pursuant to this Agreement, and such bond shall remain in effect for three (3) years after dedication as described in Section 6 below. 5. Term This Agreement shall continue for a period of four (4) months from the effective date of this Agreement, or in conjunction with the occupancy permit, whichever is longer. ~ The owner understands, tide substantial completion of the dedicated improvements and the 6. Dedication reconstructed intersec,,tion to the satisfaction of the City Engineer is a requirement for temporary occupancy. The-Owner--undmtands-the st#bst,ant�ial-coaiip tiorr -.the--ODcdicatcd-.I`mproveTiTe s and the•.t.eecanitretI Ittte ratiot,,,,,t tl�Citia arItttl, Ior ttprtry..�aney Upon completion of the construction of said improvements, substantially as depicted in Exhibits A and B, the Owner shall use its best efforts to work with the City to ensure that said improvements are dedicated to the City in a timely manner. It is understood by Owner that no dedication shall be accepted by the City until any required easements have been conveyed, accepted, and recorded by the City. 7. Indemnification Owner shall indemnify and hold the City, and its respective agents, employees, successors, and assigns, harmless from any liability, loss, costs, damages or expenses, including attorneys' fees, which the City may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising out of this Agreement. If any action is brought against the City or its respective agents, employees, successors, or assigns, in connection with this Agreement, Owner agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 8.Insurance Owner, at Owner's sole expense, shall maintain during the term of this agreement, commercial general liability insurance covering the company and activity in the amount not less than Five Million Dollars ($5,000,000) per occurrence. Owner agrees to include the City as an additional insured on any such policy and produce to the City a certificate of insurance evidencing the same. To the extent that the City is harmed as a result of the construction of said dedicated improvements, Owner hereby grants the City first priority on any proceeds received from the Owner's insurance. Notwithstanding anything in the Agreement to the contrary, the City does not waive any governmental immunity or liability limitations available to them under Indiana law. Owner may terminate the Insurance upon the successful dedication of said improvements to the City. 9. Assignment This Agreement may not be assigned by Owner without the express written consent of the City which such consent may be withheld for any reason. Any violation of this provision shall terminate the City's obligation and forfeit the Owner's rights under this Agreement. The above notwithstanding, this section shall not be read or construed so as to prevent Owner from being able to utilize a 3rd party contractor or material provided to construct the Dedicated Improvements on behalf of Owner; nor shall this be ready to prevent Owner's contractor from being able to utilize any sub-contractor(s) or sub-sub-contractor(s) for the same; nor shall Owner be required to obtain written permission from the City as to which contractor(s) Owner desires to utilize. 10. Governing Law This Agreement shall be construed and interpreted according to the laws of the State of Indiana, County of St. Joseph. 11. Severability Wherever possible, each provision of this Agreement,shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 12. Waiver No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. The waiver will not be construed to be a waiver of any succeeding breach of any such provision, a waiver of the provision itself, or a waiver of any other provisions of this Agreement. No delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have under this Agreement will operate as a waiver of any breach or default 13. Entire Agreement This Agreement sets forth the entire agreement and understanding between the Owner and the City as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. 14. Corporate Authority The person signing on behalf of the Owner represents that he/she has been duly authorized to execute this Agreement on behalf of said Owner. IN WITNESS WHEREOF, the Owner and the City, through their duly authorized representatives, have caused this Agreement to be executed as of the day and year first written above. The parties have read and understand the foregoing terms of this Agreement and do, by their respective signatures hereby agree to its terms. (Remainder of page intentionally left blank) ST. JOSEPH / CALLANDER INTERSECTION IMPROVEMENT MENARD, INC, Date Signed: Theron J. Berg, DEDICATED IMPROVEMENTS AGREEMENT Est Manager (Signature page) CITY OF SOUTH BEND INDIANA BY AND THROUGH ITS BOARD OF PUBLIC WORKS Date Signed:_L/ ,-) /. q Gary A. diot, President Suzanna Aritzberg, �Memb�er James A. Mueller, Member Therese J. Dorau, Member `�.J't— ElizabethAt' w A. Maradik, Member ATTEST: 4 ---0---k a Martin, Clerk of the Board of Public Works Ml 14K, 71"171 C6") �, lu" L'I'L, ;W'dnO7H9 N01"S'i-6 M3A3N30SOd VNVKN long Knot A4 WINAM SAIS I XV1413" IT, , 71# RE- M F- Tz H 00+9t 00+" Wet 00M 00+tt _ BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 11 /19/18 Department Public Works Name Kyle Silveus Division/Bureau Engineering Purchasing E] Check the H Agreement El Professional Service F] Bid Opening ❑ Quote Opening ❑ Change Order No. ❑ Ease/Encroach. Other: Dedicated Imo Michael Schmidt iro riate Item Type — F Contract s ❑ Resolution ❑ Bid Award ❑' Quote Award ❑ C/O & PCA No. ❑ Traffic Control: rovements Agreement Company or Vendor Name New Vendor MBE/WBE Contractor MBE/WBE Contractor Requested Project Name Project Number Funding Source Account No. Amount for All Submissions ] Proposal ❑ Req. to Advertise uired Information Menards Development ..... DP 1 .... 7-014 N/A N/A N/A ❑ PCA Addendum ❑ Title Sheet Terms of Contract N/A ................ ............ _....._.. ....._... .........._. Purpose/Description Dedicated Improvements Agreement for signature, which includes: Performance Bond @ 125% of Construction Cost of work in ROW 3 year Maintenance Bond @ 10% of the construction cost of work in ROW, Certificate of Insurance F Required Contractor's Certification Forms Attached (Non - Collusion, Non -Discrimination, Non -Debarment, E-Verify, Iran, etc.) Required For Change, Orders Onl Amount of El Increase $ ...... .. ......... ......_.. _......._. [] Decrease $ Previous Amount ..$....._...... ...... _____�._............. ._......_...... Current Percent of Change; % New Amount $ Total Percent of Chanae: Dispersal After Awroval Copy Original ❑ F] ❑'EJ n